By: IPOS Mediation
When can Pre-issue Mediation be most useful?
This question arose at a recent Thought Leaders conference entitled The Modern Trust: Contentious Trusts in a Changed Social Landscape where I co-led a fascinating discussion on capacity (and duress and undue influence) issues arising during the pandemic. It’s a theme that, as a mediator, I’ve seen beginning to emerge, and the lawyers, trustees and litigation funders in the audience echoed my own observations.
During the isolation of COVID, older – sometimes more vulnerable – people were reliant on one or a small number of people they were allowed to see. So, it’s not surprising now to find questions arising about wills or other financial dispositions they made during that time, favouring those people. In many cases, precisely because of the isolation everyone experienced, there is no medical evidence and little in the way of compelling witness evidence as to whether the person was subject to influence or pressure, or suffering from declining mental capacity – or none of those things.
At the heart of such disputes is, in essence, the feeling of the family that something must have happened to cause the gift or a change in the will. The examples given in the conference included overt threats by some individuals to stop looking after the elderly person unless they changed their will. In other cases, there may have been more subtle, ongoing hints, or a person with reduced capacity might have wrongly imagined that the family they couldn’t see no longer existed or loved them less. Or there might have been nothing wrong at all, the gift or will simply reflecting the genuine gratitude of the donor to a person who was their sole support in a global crisis.
In such cases, getting to trial might look like a long and expensive process, culminating in a witness-heavy hearing bereft of smoking guns or slam dunks, which literally rests on the judge’s impression of the parties. Jaw-jaw – not war-war
Disputes over family wealth aren’t just pandemic related, of course. From wills and trusts to family businesses and inter-generational issues, many disputes have a similar feel about them. Whether they amount to a legal claim or just cause disharmony, at their core is a feeling (often without compelling evidence) that something is unfair or someone has not been heard. Small wonder, then, that increasing numbers of parties seek mediation at a stage before a claim form is issued. The attractions are obvious – the chance to find a resolution without the financial and emotional burden of formal proceedings. Or, as Winston Churchill memorably put it, ‘Jaw-jaw is better than war-war’. But does pre-issue mediation work?
To mediate requires each party to acknowledge at least the possibility that the other has a claim (or defence), to understand the points being made in support (even if they do not agree with them), and to want to resolve the matter. From comments made at the conference it seems that where pre-issue mediation fails is when the parties have not yet articulated their claim clearly. It can be difficult, in the absence of medical or other critical evidence, to do that, and settlement is obviously challenging if the parties can’t reach a view of the likely weight of a claim or its chances of succeeding.
Parties might attend the mediation in the hope of settling, and make offers, but then find it hard to agree on a figure if the numbers are unclear, or no-one knows what evidence might be forthcoming. Sometimes, emotions are too current and raw for the parties to be ready to settle. There can be successful outcomes too. The parties themselves may be more able to settle at a stage before their legal and emotional positions become entrenched, particularly in cases where the evidence does not point strongly in either party’s favour. The mediator can help the parties to express their positions more cogently, and to understand the points being made from the other room. They often help a party understand its own (prospective) case better or more realistically, by drawing out how a judge might view a particular point, or exploring the likely costs burden.
Pre-issue mediation may narrow the issues to the point where settlement is possible, or highlight specific areas that need to be supported by evidence before the merits can be weighed. Some audience members pointed to outright settlements. Others saw success in reconvened mediation after close of pleadings, having addressed the issues drawn out earlier in a pre-issue mediation. It was certainly an eye-opening discussion, and particularly as more pandemic-related claims emerge, it will be interesting to see if pre-issue mediation becomes more widely used.
